People v. Holiday

304 N.W.2d 610, 104 Mich. App. 471, 1981 Mich. App. LEXIS 2807

• Court: Michigan Court of Appeals
• Decided: March 5, 1981
• Docket: Docket No. 50641
• Status: Published

Opinion

Per Curiam.

The defendant pled guilty to the charge of felonious assault, MCL 750.82; MSA 28.277, on October 4, 1978. The trial court had indicated that, if the defendant pled guilty, the court would impose a sentence of probation for two years. On October 18, 1978, the court placed defendant on probation for a period of four years. The trial court did not agree with defense counsel that a two-year probation had been indicated on October 4, 1978.

On January 30, 1980, defendant appeared before the court on a probation violation charge. The following occurred:

"The Court: All right, Miss Holiday, do you understand that you are entitled to a hearing on this matter in which you could present witnesses to testify in your own behalf and confront and cross-examine the witnesses against you, and it’s your desire to waive those rights and plead guilty, is that correct?

"The Defendant: Yes, it is.”

The court accepted the guilty plea and sentenced defendant to a period of incarceration of from 32 to 48 months. Defendant was not advised of her right to appeal.

Defendant, in an appeal as of right from her sentence for probation violation, claims error in the original sentencing on the felonious assault conviction.

According to GCR 1963, 803.1, the time for taking an appeal of right in a criminal case is 60 days after entry of judgment, appointment of appellate counsel, or denial of a motion for a new trial, whichever occurs last. See People v Soto, 62 Mich App 370; 233 NW2d 545 (1975).

In People v Pickett, 391 Mich 305; 215 NW2d 695 (1974), it was held that a defendant has an appeal as of right after conviction and imposition of probation and another appeal of right after determination of probation violation and prison sentence. Further, the appeal of right following probation violation and sentence is limited to matters relating to the probation violation and hearing thereon. Even if we consider the four-year period of probation as error, it was harmless. The original sentence was meted out on October 18, 1978, and the guilty plea to the probation violation was accepted on January 30, 1980, which was within the two-year period of probation claimed by defendant to have been agreed upon.

In reading MCL 771.4; MSA 28.1134, it is apparent that the Legislature intended the sentencing court to have greater latitude in administering the law concerned with certain phases of probation.

The Michigan Supreme Court in People v Rial, 399 Mich 431; 249 NW2d 114 (1976), ruled that GCR 1963, 785.7, dealing with the procedure for accepting a plea of guilty, does not apply to probation revocation proceedings. Pursuant to People v Hardin, 70 Mich App 204; 245 NW2d 566 (1976), we find that the defendant’s due process requirements were met.

Defendant finally argues that the court did not advise her of her right of appeal as directed by GCR 1963, 785.11. Defendant petitioned the court for appointment of counsel on February 13, 1980, two weeks after the conviction. Forms usually served on the defendant at sentencing were filed with the court within two weeks of sentencing. If error was committed by the court in failing to advise the defendant of her appeal rights, it was harmless, given that defendant’s entitlement to an appeal as of right was not prejudiced.

Affirmed.